How to describe the attempt to send the talks between the NHL and its union, the NHLPA, toward independent mediation?

How about: Unadulterated cynicism. Cynical abuse of the system. Fighting a war that will leave both sides in ruins.

Will the mediation succeed? Whoever has a crystal ball available, submit your resume.

Those without a crystal ball need not apply. But their perfectly considered view that this latest charade is bound to fail is as legitimate as the hope that, at long last, someone will save at least some remnants of this season.

Even though the hope is faint.

Why?

Here’s the sequence of events: NHLPA executive director Donald Fehr calls NHL commissioner Gary Bettman over the weekend and says it would be a great idea if the two sides submitted their argument to an outside party for mediation. The U.S. Federal Mediation and Conciliation Service (FMCS for short) is the chosen agent of change. Lest some patriotic souls start complaining that hockey is still Canada’s game, here’s the reason: the league and the players have agreed long time ago, and embodied it in their collective agreements, that U.S. labour laws shall prevail during any arguments. These laws are federal matter in the U.S., while in Canada, each province has its own labour legislation. Makes perfect sense to do it all under one law. Calgary Flames and Edmonton Oilers players found that out not long ago, when they disputed the legality of the NHL lockout because it didn’t meet (in their view) some provisions of Alberta’s labour laws. The league prevailed.

Anyhow, Bettman answers Fehr’s idea by saying yes. If he didn’t, it would have been political harakiri. Not only in public opinion’s perception. Legally, too.

The NHLPA has been mulling, way too openly, and way too long, the question of decertification. One of the nuclear weapons in labour negotiations. The union disappears into thin air, players under contract demand (rightfully) that they get paid in full, there’s no cap, no lockout, no draft, no rules that would however vaguely remind anyone of any monopolism, the league would be open to anti-trust litigation, and so on. Basically, if taken to its logical results, decertification can mean the end of the league as we’ve known it for such a long time.

Except: the players have to apply for decertification first. The U.S. National Labor Relations Board’s first question would be: have you exhausted all other avenues? Have you tried mediation? If the answers to both questions are “yes,” the petition can proceed to the next step, an injunction imposed on the league, and league-wide vote by players. If the union says (and documents) that they asked the league to agree to mediation but the NHL told them to go fly a kite, they’ve got it made right then and there. But if one of the answers is “no,” the NHLPA will be asked to leave the building, asked to deposit a hefty fine with the receptionist on their way out.

But this is not about just one side having a nuclear weapon in its arsenal.

The league can apply for a declaration of “impasse.” This is a legal term, with a few pages of legal descriptions and referrals. It means: we’re stuck in a no-exit alley and we don’t see the way out. Again, the first question the league would hear would be: have you exhausted all other avenues? Have you tried mediation? A positive answer means the NHL can drop the bomb: here you are, gentlemen of the NHLPA, this is your collective bargaining agreement whether you agree to it or not, it’s become the law of the land. All players with existing contracts are requested to report here or there, now or then, on pain of fines that would wipe out their savings.

Of course, whatever the mediators say doesn’t legally bind either side to anything. From the point of view of a public opinion fiasco, on the other hand, not too many approaches would be worse than rejecting the mediators’ recommendations.

But the Federal Mediation and Conciliation Service (a.k.a. FMCS) has run into mud of its own doing, face first.

Turns out one of its commissioners, a guy named Guy Serota, was accused of having posted some derogatory observations on his Tweeter account. Allegedly, some of these remarks bordered on the racist.

Let’s put aside the question that some people describe things as racist for no other reason that they personally think they ought to be offended. That’s what political correctness does to society. Also, let the proper investigation establish whether someone has hacked into Guy Serota’s Tweeter account (his claim) or whether he is so pathetically stupid.

The FMCS chief, George H. Cohen was forced to eat crow shortly thereafter.

“Within one hour after I issued a press release announcing that further negotiations between the NHL and NHLPA would be conducted under the auspices of the FMCS,” Cohen wrote in a news release, “it has been called to my attention that there are issues involving an allegedly hacked Twitter account associated with Commissioner Guy Serota, one of the mediators I assigned. Accordingly, in order to immediately dispel any cloud on the mediation process, and without regard to the merits of the allegations, I have determined to take immediate action, namely to remove Commissioner Serota from this assignment.”

As attributed to William Shakespeare, the line that divides comedy from tragedy and vice versa can be so thin as to become invisible.

Which is all fine and dandy, but the most important questions remain. Such as: would the union agree that it doesn’t own the league and thus can’t order its members’ employers around? Would it also agree that getting 50 per cent of hockey-related revenue as its members’ share is a luxury not experienced in most other industries, professional sports exempted?

Would the owners be willing and ready to admit and accept that the strict rules they propose imposing on individual players’ contracts border on the shockingly ridiculous and senseless, and that there can be (must be) a better way to control their expenses?

And would both sides be willing to accept that a third party is looking over their shoulders, kibitzing, and that these people haven’t got much experience with running either the NHL or the NHLPA?

An exception: FMCS chief George H. Cohen did provide legal assistance to the NHLPA during the 2004-2005 lockout. But he wouldn’t be personally involved during this lockout. Besides, we all know what happened in 2005.

And a reality check with history: the NHL and the NHLPA met under the auspices of the FMCS on Feb. 13, 2005. Three days later, Gary Bettman announced that the season was off.

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